State Of Iowa Vs. Joshua Daniel Fleming , 790 N.W.2d 560 ( 2010 )

IN THE SUPREME COURT OF IOWA
No. 08–1132
Filed November 12, 2010
STATE OF IOWA,
Appellee,
vs.
JOSHUA DANIEL FLEMING,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Woodbury County, John C.
Nelson, Judge.
The defendant appeals from his conviction for possession of
marijuana, contending the district court erred in overruling his motion to
suppress and arguing that when officers obtain a search warrant for a
single-family residence they must obtain a separate warrant to search a
rented room located therein. DECISION OF COURT OF APPEALS
VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE
REMANDED.
Mark C. Smith, State Appellate Defender, and Patricia Reynolds,
Assistant Appellate Defender, for appellant.
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Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant
Attorneys General, Patrick Jennings, County Attorney, and Jayme
Kirsch, Assistant County Attorney, for appellee.
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BAKER, Justice.
The defendant, Joshua Fleming, appeals from his conviction for
possession of marijuana. He contends the district court erred in
overruling his motion to suppress and argues that when officers obtain a
search warrant for a single-family residence they must obtain a separate
warrant to search a rented room located therein. We find Fleming had a
reasonable expectation of privacy in his bedroom, and the officers
violated that interest by searching his bedroom without obtaining a
search warrant authorizing a search of that area. The decision of the
court of appeals is vacated and the district court judgment reversed.
I. Background Facts and Proceedings.
Joshua Fleming was charged by trial information with possession
of a controlled substance in violation of Iowa Code section 124.401(5)
(2007). This charge stemmed from a search warrant that was executed
at 922 Wright Avenue, Sioux City, Iowa. The search uncovered six
pounds of marijuana and $14,000 in cash. It also uncovered a small
amount of marijuana that was found in Fleming’s bedroom.
The search warrant was based upon a traffic stop made by Officer
William Nice after Nice pulled over Cory Leckband and Jacob Lammers
for failure to wear a seatbelt. Nice testified that when he approached the
vehicle he could smell marijuana emanating from the vehicle and asked
the men how long it had been since they last smoked marijuana.
Leckband answered that it had been about thirty minutes, and both men
were arrested.
In post Miranda interviews, Lammers and Leckband both told the
officer that they were on their way to purchase one pound of marijuana
from an individual named Andrew Nearman. Both men indicated that
Nearman lived in the Riverside area of Sioux City. Lammers also gave
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police a description of the vehicle Nearman drove and agreed to take the
police to the location of Nearman’s residence. The police were also
informed that other roommates lived at the residence. The Sioux City
police dispatcher verified that the home pointed out by Lammers
belonged to Nearman and that Nearman’s vehicle was registered at that
address.
Based upon this information, the officers obtained a search
warrant for Nearman’s residence authorizing a search for marijuana and
related items in the possession of Nearman. Several officers knocked on
the front door of the residence. They reported that Fleming went to the
front door, looked through the glass portion, saw it was the police, and
turned and walked away from the door. At that point, the officers broke
the door down. They detained two men in the living room. Fleming was
located and detained in the dining room. Nearman was found in a back
room by the kitchen and detained. All four of the men were identified
and detained in the dining room for the duration of the search.
After detaining the men, the officers searched the entire residence.
They found a guitar case containing marijuana in the basement, a large
duffel bag containing approximately five pounds of marijuana under
Nearman’s bed, and $14,000 in cash inside Nearman’s bedside table.
They also found small quantities of marijuana in the other two
bedrooms. Fleming’s bedroom was searched by Officer Troy Hansen.
Hansen testified that he saw papers for a Progressive Insurance policy
made out to Fleming listing the Nearman home as his residence. Hansen
also found a baggy of marijuana on the floor of the closet. Fleming
remained detained in the kitchen, but none of the officers talked to him
about the items found in the bedroom or inquired about whether he lived
at the residence.
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Fleming filed a motion to suppress any physical evidence recovered
by the officers. Fleming argued that the evidence was obtained in
violation of his Fourth Amendment rights guaranteed by the United
States Constitution and article I, section 8 of the Iowa Constitution.
Fleming claimed the application for the search warrant was defective
because it failed to establish the reliability and veracity of the
informants. He also claimed the search of his bedroom was outside the
scope of the warrant because he had exclusive possession of the room,
and Iowa does not recognize a good faith exception to the exclusionary
rule.
A hearing was held on Fleming’s motion where he testified that he
rented his room from Nearman for $375 a month and had exclusive
possession of the room. The district court held that the scope of the
warrant extended to Fleming’s room as the warrant contemplated the
entire residence at 922 Wright Avenue, and Fleming did not have a
reasonable expectation of privacy in his bedroom. A bench trial was held
on Fleming’s possession charge, and the court found Fleming guilty.
Fleming appealed, once again claiming that the search of his
bedroom was outside the scope of the warrant. His appeal was routed to
the court of appeals. The court of appeals affirmed the district court.
Fleming then filed an application for further review with this court, which
we accepted.
II. Scope of Review.
Fleming claims that the search of his bedroom was in violation of
his Fourth Amendment rights under the United States Constitution and
article I, section 8 of the Iowa Constitution. Our review of his claim is
therefore de novo. State v. Lane, 726 N.W.2d 371, 377 (Iowa 2007).
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This review requires “ ‘an independent evaluation of the
totality of the circumstances as shown by the entire
record.’ ” In doing so, we give deference to the factual
findings of the district court due to its opportunity to
evaluate the credibility of the witnesses, but are not bound
by such findings.
Id. (quoting State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001)).
III. Discussion and Analysis.
The specific question we must determine is whether a separate
search warrant was required for a room rented within Nearman’s house.
Fleming has alleged the search of his rented room violated his right to be
free from unreasonable search and seizure guaranteed under both the
United States Constitution and the Iowa Constitution. Article I, section 8
of the Iowa Constitution provides:
The right of the people to be secure in their persons, houses,
papers and effects, against unreasonable seizures and
searches shall not be violated; and no warrant shall issue
but on probable cause, supported by oath or affirmation,
particularly describing the place to be searched, and the
persons and things to be seized.
Iowa Const. art. I, sec. 8. The Fourth Amendment to the United States
Constitution guarantees:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
U.S. Const. amend. IV. The constitutional guarantees of the Fourth
Amendment have been declared enforceable against the states through
the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio,
367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L. Ed. 2d 1081, 1090 (1961).
Generally, the rights contained in the Fourth Amendment and the
Iowa Constitution are “deemed to be identical in scope, import, and
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purpose.” State v. Groff, 323 N.W.2d 204, 207 (Iowa 1982). In
evaluating claims under the Iowa Constitution, the United States
Supreme Court interpretation of a parallel federal constitutional
provision may be persuasive authority, but is no more binding on this
court on the state constitutional issue than the cases of other state
supreme courts. We jealously reserve the right to interpret our state
constitution in a fashion that provides greater protection. State v. Cline,
617 N.W.2d 277, 284–85 (Iowa 2000) (“[A]lthough this court cannot
interpret the Iowa Constitution to provide less protection than that
provided by the United States Constitution, the court is free to interpret
our constitution as providing greater protection for our citizens’
constitutional rights.”), overruled on other grounds by Turner, 630 N.W.2d
at 606 n. 2; see also Graves v. State, 708 So. 2d 858, 861 (Miss. 1997)
(declaring the state constitution provides greater protection of an
individual’s reasonable expectation of privacy than that provided under
the federal law).
In determining whether there has been a Fourth Amendment
violation, this court has adopted a two-step approach. State v. Legg, 633
N.W.2d 763, 767 (Iowa 2001). “First, we decide whether the person
challenging the search has shown a legitimate expectation of privacy in
the area searched. If so, we then ‘consider whether the State has
unreasonably invaded that protected interest.’ ” Id. (quoting State v.
Breuer, 577 N.W.2d 41, 45 (Iowa 1998)) (citations omitted). The parties
have employed the two-step test in their analysis of the issue in this
case. The two-step privacy test is often helpful in resolving cases under
the Iowa Constitution, and, as a result, we employ it in this case.
A. Expectation of Privacy. Ordinarily, the police must obtain a
search warrant before entering or searching an area where a person has
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a reasonable expectation of privacy. State v. Ortiz, 618 N.W.2d 556, 559
(Iowa 2000); see also Breuer, 577 N.W.2d at 45. In this case, there was a
valid search warrant issued for the residence located at 922 Wright
Avenue in Sioux City. Fleming does not appear to be arguing the
warrant itself was invalid; rather, he is claiming his bedroom was outside
the scope of the warrant.
An individual challenging the legality of a search has the burden of
showing a legitimate expectation of privacy in the area searched. Ortiz,
618 N.W.2d at 559 (citing Rawlings v. Kentucky, 448 U.S. 98, 104, 100
S. Ct. 2556, 2561, 65 L. Ed. 2d 633, 641 (1980)). “The determination of
whether a person has a legitimate expectation of privacy with respect to a
certain area is made on a case-by-case basis, considering the unique
facts of each particular situation.” Breuer, 577 N.W.2d at 46. The
expectation must also be one that society considers reasonable. Id.
What society considers reasonable is determined by examining property
laws as well as society’s generally recognized and permitted expectations
about privacy. Id. Whether an individual enjoys an expectation of
privacy in a rented room within a house that is lived in communally is an
issue of first impression for this court.
The United States Supreme Court has also never addressed this
precise question. It has, however, addressed related questions. It has
firmly established that the Fourth Amendment secures an expectation of
privacy in one’s home. Payton v. New York, 445 U.S. 573, 585, 100 S.
Ct. 1371, 1379, 63 L. Ed. 2d 639, 650 (1980); Agnello v. United States,
269 U.S. 20, 32, 46 S. Ct. 4, 6, 70 L. Ed. 145, 149 (1925). It found this
expectation of privacy extends to the dwellings of renters, even when
police obtain the landlord’s consent. Chapman v. United States, 365 U.S.
610, 617, 81 S. Ct. 776, 780, 5 L. Ed. 2d 828, 833–34 (1961). It has also
9
extended this expectation of privacy to tenants living in buildings with
multiple units. See Maryland v. Garrison, 480 U.S. 79, 86, 107 S. Ct.
1013, 1017–18, 94 L. Ed. 2d 72, 82 (1987). It has even extended this
expectation of privacy to hotel and motel rooms, Stoner v. California, 376
U.S. 483, 490, 84 S. Ct. 889, 893, 11 L. Ed. 2d 856, 861 (1964) (“[A]
guest in a hotel room is entitled to constitutional protection against
unreasonable searches and seizures.”), and social guests in the home of
their host or hostess. Minnesota v. Olson, 495 U.S. 91, 96–97, 110 S. Ct.
1684, 1688, 109 L. Ed. 2d 85, 93 (1990) (holding overnight guests have a
reasonable expectation of privacy in the home of their host or hostess).
When the United States Supreme Court held that individuals have
an expectation of privacy in hotel and motel rooms, it acknowledged that
when a person purchases a hotel room he gives “implied or express
permission . . . to such persons as maids, janitors or repairmen” to enter
his room. United States v. Jeffers, 342 U.S. 48, 51–52, 72 S. Ct. 93, 95,
96 L. Ed. 59, 64 (1951). The Court found an expectation of privacy even
though the room was accessible to others. Id. Similarly, the Court found
an expectation of privacy for social guests in the home of their host, even
though that area is clearly accessible to others, namely the owner, his
family, and friends. Olson, 495 U.S. at 98–99, 110 S. Ct. at 1689, 109 L.
Ed. 2d at 94–95. It has even found a temporary expectation of privacy in
a telephone booth, which is an area that is usually open to the public.
Katz v. United States, 389 U.S. 347, 352, 88 S. Ct. 507, 511–12, 19 L.
Ed. 2d 576, 582 (1967). These cases demonstrate that the ability to
exclude all other individuals from an area does not appear necessary for
a person’s expectation of privacy to be reasonable. See also In re
Marriage of Tigges, 758 N.W.2d 824, 827 (Iowa 2008) (“[Wife]’s
expectation of privacy [in her bedroom] . . . is not rendered unreasonable
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by the fact Jeffrey was her spouse at the time in question, or by the fact
that Jeffrey may have been living in the dwelling at that time.”).
The types of dwellings in which the Court has found an expectation
of privacy have many commonalities with a rented room in a house. In
Olson, the Court held that the test is whether an individual has “an
expectation of privacy in the home that society is prepared to recognize
as reasonable.” Olson, 495 U.S. at 96–97, 110 S. Ct. at 1688, 109 L. Ed.
2d at 93. We believe the Court has implicitly considered many
underlying factual circumstances, such as the ability to exclude others
from the property, to store possessions on the property, and to sleep
undisturbed on the property, when determining whether an expectation
of privacy exists. See generally Chapman, 365 U.S. at 616–17, 81 S. Ct.
at 780, 5 L. Ed. 2d at 833; Stoner, 376 U.S. at 490, 84 S. Ct. at 893, 11
L. Ed. 2d at 864.
Cases from other jurisdictions support the proposition that renters
do enjoy exclusive use of their rooms. See, e.g., United States v.
Greathouse, 297 F. Supp. 2d 1264, 1274–75 (D. Or. 2003). In
Greathouse, the court declared rented spaces need not be self-contained
units with their own kitchen and bathrooms, separate locks, or mailing
addresses. Id. at 1274. The court found the physical layout of the
residence was not dispositive. Id. Rather, in determining that a renter in
a communally shared house does have a reasonable expectation of
privacy in his or her bedroom, the court relied upon the lack of any
familial relation between the residents, the defendant’s closed door, a “Do
Not Enter” sign posted on the bedroom door, and the residents’ presence
at the home during the search and advisement that the defendant was a
renter and lived in the back bedroom. Id. at 1274–75. The court found
that once the police determined there were separate residences within
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the house, they should have stopped the search and obtained a separate
warrant for the defendant’s bedroom. Id. at 1275.
We also note Graves, which held that under the Mississippi
Constitution an individual possessed a reasonable expectation of privacy
in his solely and exclusively occupied portion of a house trailer. Graves,
708 So. 2d at 861; see also Scott v. State, 266 So. 2d 567, 569 (Miss.
1972) (“[W]here the proof shows that a person is renting a room or is in
possession of a room in a house or an apartment under such
circumstances as to make such person the owner thereof for the time
being, such person is entitled to [a reasonable expectation of privacy].”).
We recognize that authority exists which supports the contrary
assertion—that an individual does not have an expectation of privacy in a
rented room located within a house. See United States v. Davis, 557 F.2d
1239, 1248 (8th Cir. 1977); United States v. Fennell, 496 F. Supp. 2d
279, 282–83 (S.D.N.Y. 2007); State v. Reynolds, 218 P.3d 795, 800
(Idaho Ct. App. 2009); Commonwealth v. Smith, 898 S.W.2d 496, 500–01
(Ky. Ct. App. 1995) (explaining the community-living exception to the
multiple-unit rule); State v. Coatney, 604 P.2d 1269, 1272 (Or. Ct. App.
1980) (declaring that where a house appears to be a single-family unit
the warrant includes rented rooms within the house). 1 These cases
observe the holding in Garrison, extending the expectation of privacy to
tenants living in buildings with multiple units, but make a distinction
between apartments or separate dwelling units and individuals renting
1As part of the analysis for this position, courts have sometimes relied on the
fact that the police were unaware that unrelated persons were sharing the dwelling.
Whether the police have a good faith reason to believe the residence is only a single-
family dwelling has no bearing on our analysis. We do not recognize a good faith
exception under the Iowa Constitution. Cline, 617 N.W.2d at 292–93.
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rooms within a single family house. Smith, 898 S.W.2d at 500–01. This
distinction is also referred to as the community-living exception. Id.
The community-living exception is based upon the premise that an
individual renting a room in a house that is lived in communally does not
have exclusive use of that area of the dwelling. State v. Alexander, 704
P.2d 618, 620 (Wash. Ct. App. 1985). As the Washington Court of
Appeals explained:
“[T]here is a broader justification for treating cases of
community occupancy differently: where a significant
portion of the premises is used in common and other
portions, while ordinarily used by but one person for family,
are an integral part of the described premises and are not
secured against access by the other occupants, then the
showing of probable cause extends to the entire premises.
For example, if three persons share an apartment, using a
living room, kitchen, bath and hall in common but holding
separate bedrooms which are not locked, whichever one of
the three is responsible for the described items being in the
apartment could have concealed those items anywhere within,
including the bedrooms of his cotenants.”
Id. (quoting 2 Wayne R. LaFave, Search and Seizure § 4.5(d), at 81 (1st
ed. 1978)). But see State v. Quigley, 892 A.2d 211, 218–19 (Vt. 2005)
(recognizing the community-living exception but refusing to apply it when
a roommate’s bedroom door is locked).
We reject the rationale behind the community–living exception.
We must consider society’s generally recognized and permitted
expectations about privacy with respect to roommates living together in a
single-family home. “Today it is not unusual to see a group of unrelated
single persons living together and sharing expenses.” Ames Rental Prop.
Ass’n v. City of Ames, 736 N.W.2d 255, 266 (Iowa 2007) (Wiggins, J.,
dissenting). 2 We do not believe that when individuals decide on this type
2At the time of the 2000 census, over 135,000 Iowans were living with
nonrelatives. See Bureau of the Census, U.S. Dep’t of Commerce, Profile of General
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of living arrangement, they believe they are giving up the right to privacy
in their personal space. Generally, when single, unrelated persons live
together in a house, the kitchen, living room, bathroom, hallways and
entryways are communal space, but the individual bedrooms remain
private. As a social norm, this is fairly well established; thus, many of
these individuals probably do not feel the need to clearly delineate their
personal space with locks or signs. We find a reasonable expectation of
privacy in an individual room rented within a single-family house.
Fleming has demonstrated a legitimate expectation of privacy in
his bedroom. The testimony shows Fleming rented a room within
Nearman’s house for $375 a month. He was not related to Nearman and
testified that he had exclusive possession and control of his room. There
is no indication he gave Nearman access to his private bedroom. We
hold Fleming has demonstrated a reasonable expectation of privacy in
his bedroom. Therefore, a warrant was required to enter Fleming’s
bedroom.
B. Invasion of Protected Interest. As previously noted, “the
government must obtain a search warrant prior to unreasonably
searching, or entering, an area where a person possesses a reasonable
expectation of privacy.” Breuer, 577 N.W.2d at 45. “If a warrant calls for
the search of multiple places or persons, probable cause must exist as to
each location or person sought to be searched under authority of the
warrant.” State v. Jamison, 482 N.W.2d 409, 412 (Iowa 1992), abrogated
_______________________________
Demographic Characteristics for Iowa: 2000 (2001), available at
http://www.census.gov/prod/2002pubs/c2kprof00-ia.pdf. A recent study also found
that 12% of young adults age 18 to 34 have acquired a roommate because of recent
economic conditions. Wendy Wang & Rich Morin, Pew Research Center, Home for the
Holidays . . . and Every Other Day (Nov. 24, 2009), available at
http://pewsocialtrends.org/pubs/748/recession-brings-many-young-adults-back-to-the-
nest.
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on other grounds by State v. Heminover, 619 N.W.2d 353, 357 (Iowa
2000).
Although the warrant purported to encompass the entire house,
because we have determined that Fleming had a reasonable expectation
of privacy to his room, any search of his room was required to be
supported by an independent showing of probable cause. The State has
not asserted that probable cause existed to search Fleming’s room.
There was no reason to believe that Nearman had access to that room or
that he may have hidden drugs there. Further, there was no showing to
the magistrate that Fleming was in possession of drugs. In ruling on
Fleming’s motion to suppress, the district court found Leckband and
Lammers had informed police in their post Miranda interviews that
Nearman had a roommate or roommates and told police they believed
there was marijuana in all of the bedrooms in the residence. This
information, however, was not contained in the search warrant
application.
[W]e have strictly limited the determination of whether
probable cause exists to a consideration of only those facts
reduced to writing that were actually presented to the
issuing judge at the time the application for the warrant was
made. Any additional facts adduced later cannot be
considered.
State v. Gillespie, 530 N.W.2d 446, 448 (Iowa 1995) (citation omitted).
The only person named in the application as having possession of drugs
was Nearman. Thus, there was no showing of probable cause to search
Fleming’s room. Therefore, the search of his room was warrantless. 3
3We acknowledge that State v. Lehr, 258 N.W.2d 158 (Iowa 1977), presented a
situation with somewhat similar facts. In Lehr, a search warrant was issued for an
apartment unit and all persons on the premises during the search. Id. at 159. The
defendant did not raise the issue presented here, but only whether the warrant should
have been issued for the entire apartment. Id. at 159–60. This case is distinguishable
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“A warrantless search . . . is per se unreasonable unless it falls
within a recognized exception.” Cline, 617 N.W.2d at 282. “These
exceptions include searches based on consent, plain view, [or] exigent
circumstances, and searches incident to arrest.” Breuer, 577 N.W.2d at
45. “The State has the burden to prove by a preponderance of the
evidence that the search falls within an exception.” Cline, 617 N.W.2d at
282. The State, however, does not even argue that there is an applicable
exception that would allow the officers’ warrantless search of Fleming’s
bedroom, nor viewing the totality of the circumstances can we find one. 4
Because we find the officers unreasonably invaded Fleming’s
protected interest in his bedroom, and therefore violated his right to be
free from unreasonable search and seizures under article I, section 8 of
the Iowa Constitution, 5 the evidence of marijuana found in his bedroom
must be suppressed. 6 State v. Tague, 676 N.W.2d 197, 206 (Iowa 2004)
_______________________________
as the application alleged that apartment was in the name of Lehr and further that
three residents were in possession of drugs.
4To the extent probable cause may have supported a further search of Fleming’s
bedroom, a new search warrant was required. See Graves, 708 So. 2d at 861 (requiring
a new search warrant for a rented room).
5The United States Supreme Court has not addressed this precise issue, and
therefore we do not presume to decide the outcome under the Fourth Amendment to the
United States Constitution.
6We have rejected the good faith exception to the exclusionary rule where there
has been an unlawful search.
Regardless of the good faith of police in relying upon a search warrant
approved and issued by a judicial officer, the exclusionary rule remains
the best way to protect the integrity of the judicial process and an
individual’s right under our state constitution to be free from government
conduct ultimately determined to be unlawful. Accordingly, even if the
search of [the defendant] was conducted by officers within the framework
of the good faith doctrine . . . the exclusionary rule nevertheless applies
to [his] claim under our state constitution.
State v. Prior, 617 N.W.2d 260, 268 (Iowa 2000).
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(holding all evidence flowing from an unconstitutional search is
inadmissible).
IV. Disposition.
We conclude that under our state constitution Fleming had a
reasonable expectation of privacy in his bedroom, and the officers
violated that interest by searching his bedroom without obtaining a
warrant supported by probable cause authorizing a search of that area.
As a result, the evidence seized from Fleming during the search must be
excluded from trial. The decision of the court of appeals is vacated and
the district court judgment reversed. We remand for further proceedings.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT REVERSED AND CASE REMANDED.